Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

On 28 February 2012, the US Supreme Court heard oral arguments in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The case concerns claims brought by a group of 12 Nigerians (“thepetitioners”) who allege that various Shell entities (“therespondents”) planned, conspired and facilitated the government of Nigeria’s extrajudicial executions, torture and crimes against humanity in the Ogoni region of the Niger Delta between 1992 and 1995. The case was filed under the Alien Tort Statute (“ATS”), a centuries-old law that has been interpreted by the US Supreme Court to allow foreign victims of human rights abuse to seek civil remedies in US courts.

In the first of two posts on the case, I consider the question of corporate liability under international law. In the second post I will consider the question of the exercise of universal civil jurisdiction by domestic courts under international law.

Submissions before the Supreme Court

One of the core questions raised before the Supreme Court in Kiobel was whether corporations could be held liable for human rights violations under the ATS.

In its September 2010 ruling, the Second Circuit Court of Appeals in Kiobelfound that claims could not be brought against corporations under the ATS. The Second Circuit held that since:

“corporate liability has not attained a discernable, much less universal, acceptance among nations of the world in their relations inter se, […] it cannot […] form the basis of a suit under the ATS”.

Before the Supreme Court, the petitioners argued that the Second Circuit’s analysis was erroneous. Paul Hoffman, counsel for the petitioners, pointed out that the Second Circuit (and the respondents) were wrong to:

“conflate […] the question about whether […] international law norms apply to a corporation or a person with whether there’s […] an international consensus with respect to how those norms should be enforced.”

With this in mind, Paul Hoffman submitted that the question of who may be sued under the ATS concerns how international norms may be enforced and “international law places no restriction on the way domestic jurisdictions enforce international law”. While it may be necessary to show that a particular international legal norm (e.g. genocide, slavery etc.) is applicable to corporations, the question of liability under the ATS is one of US domestic law. Since US domestic law accepts the proposition of corporate liability, the petitioners argued that their claim against the respondents should be upheld.

In response, the respondents tried to break through the distinction drawn by the petitioners between applicability and enforcement of international legal norms. To this end, Kathleen Sullivan, counsel for the respondent, explained that:

“corporate liability is a substantive norm that is established by international law. […] The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations.”

Kathleen Sullivan then proceeded to submit that international law does not provide for a specific, universal and obligatory norm of corporate liability:

“In fact, it refutes it. The Rome statute rejected liability for corporations. The jurisdictional statutes of the ICTY and the ICTR apply jurisdiction only to natural persons. The international community at step one has rejected it.”

In light of this, the respondents urged the Supreme Court to find that “corporate liability is foreclosed both by the uniform practice, […] not just adjudications, of the nations of the world”.

Analysis

Paul Hoffman had barely opened his argument for the petitioners when Justice Kennedy interrupted him stating that:

“for me, the case turns in large part on this: page 17 of the red brief. It says“International law does not recognize corporate responsibility for the alleged offenses here.””

This opening comment from Justice Kennedy, which is effectively a restatement of the position of the respondents and the Second Circuit, challenged Paul Hoffman’s core argument that domestic law determines who can be sued for human rights abuses under the ATS. But is this an accurate reflection of international law in respect of corporate liability?

It is submitted that the above statement, together with the respondents’ supporting submissions, fails to acknowledge two key distinctions.

First, the respondents failed to acknowledge the distinction between the applicability and the enforcement of international legal norms. The respondents’ insistence that there was no discernible norm of international law in respect of corporate liability is, quite simply, irrelevant. The point is made most forcefully by the amicus curiae brief of Yale Law School Center for Global Legal Challenges (the “Yale brief”):

“At the outset we note a critical difference between the applicability of an international law norm and whether liability should be imposed upon a party who violates an applicable norm. The Kiobel majority wrongly elided this distinction, conflating the absence of international law precedent holding corporations criminally liable with a conclusion that major prohibitory norms of international law have no application to what corporations do.”

The Yale brief conducts an extremely insightful norm-by-norm analysis in respect of each alleged violation of international law to determine if a claim may be maintained under the ATS. Once it can be shown that the international legal norms in question are applicable to corporations, the question of whether corporations may be held liable becomes a matter of domestic law.

In this regard, it is important to recognise that international law does not prescribe the means of enforcing its norms. This point is well-made by the amicus curiae brief of the International Law Scholars:

“International law never defines the means of its domestic implementation, leaving sovereign States a wide berth in assuring that the law is respected and enforced in accordance with its own law and traditions […] [A] sovereign need not look to international law for permission to act; rather, international law prohibits egregious conduct that is of concern to all nations, and States are then empowered, indeed required, to craft remedies appropriate to their individual justice systems.”

This point was also made by Paul Hoffman at the oral hearing who submitted that rather than the onus being on the petitioners to identify an international consensus in respect of corporate liability, it was in fact on the respondents to prove the existence of:

“[an] international law principle […] that says that the United States Congress was disempowered at its founding from providing these kinds of tort remedies”.

Second, the respondents failed to distinguish between the applicability of an international legal norm and the jurisdiction of international tribunals. The respondents tried to conclude that, in light of the fact that international criminal courts and tribunals lack jurisdiction in respect of corporations, there was consequently no international legal norm of corporate liability. This is erroneous on a number of grounds. Not only do the respondents ask the wrong question, since, as already noted, it is unnecessary to identify an international legal norm of corporate liability, they also conflate issues of jurisdiction with whether international legal norms apply to corporations. As Jens David Ohlin has noted:

“[O]ne can treat the reluctance to prosecute corporations at Nuremberg, the ICTY, ICTR, and the ICC, as purely a matter of jurisdiction. And just because these tribunals don’t have jurisdiction over corporations does not mean that corporations cannot violate international legal norms. And just because the ICC does not have jurisdiction over corporations does not entail that a US court does not have jurisdiction over them either. Each court or tribunal has separate jurisdictional rules. And one has to separate the jurisdictional point from the underlying legal norm.”

Conclusion

The potential hazards of domestic courts considering issues of international law have recently been considered by Anthea Roberts, in her paper, Comparative international law? The role of national courts in international law (I.C.L.Q. 2011, 60(1), 57-92). Roberts invokes the ATS as:

“an example of a hybrid body of precedent that tends to look international to US domestic lawyers and domestic to non-US international lawyers. What we are witnessing is something that cannot easily be categorized as domestic or international law, or as law creation or enforcement, but rather is some hybrid in between each set of poles.”

There are several aspects of ATS jurisprudence (beyond the scope of the present post) which contribute to this so-called “hybridisation” of international law. Nonetheless, this post has sought to highlight some of the key distinctions under international law which, despite being ignored by the Second Circuit Court of Appeals and the respondents, remain open to the US Supreme Court to adopt in its final judgment.

In this regard, perhaps the most useful summary of the approach that the Supreme Court should follow is set out in the amicus curiae briefof the International Law Scholars:

“The right question is not whether human rights treaties explicitly impose liability on corporations, or whether the international criminal tribunals have jurisdiction over corporations, or even whether other States have universally imposed criminal or civil liability for violations of international law, as the Kiobel majority thought. […] It is whether those treaties, the charters of the criminal tribunals, and the practice of states affirmatively distinguish between juristic and natural individuals in a way that exempts the former from all responsibility for violations of international law. They clearly and profoundly do not.”

Whether the US Supreme Court will adopt such an approach remains to be seen. However, one final point to note in this regard is that the case of Kiobel is timely, arriving relatively soon after the Supreme Court’s controversial decision in Citizens United v Federal Election Commission. In that case, the Supreme Court opened the door for corporations to pour billions of dollars into media election campaigns. The Supreme Court held that corporations are legal persons and as such are entitled to the protection of the first amendment, which guarantees freedom of speech.

As commentators have been quick to point out (see here, for example), it would be an awkward outcome to say the least if the Supreme Court held that corporations are legal persons for the purpose of political campaigning, but not for the purpose of holding them accountable for gross human rights violations.

2 Responses

There is absolutely no question that the substantive law incorporated by reference in the Alien Tort Statute (ATS or ATCA) is international law — it is the law that must be violated (either customary or treaty-based) to create the wrong that is actionable. With respect to remedies, of course, it is error to assume that human rights law does not require access to courts and an effective remedy. See, e.g., ICCPR, arts. 2, 14(1), as interpreted especially in connection with General Comments Nos. 13, 15, 20, 24; CAT, art. 16, etc.; Paust, Suing Bush et al,…. available at http://ssrn.com/abstract=1458638
And, of course, corporations can have liability (and rights) under international law. Already, 20 U.S. Supreme Court cases have so recognized! see, e.g., http://ssrn.com/abstract=1701992
and see http://ssrn.com/abstract=1548112 and http://ssrn.com/abstract=1487719
Hopefully the Supreme Court will recall its prior opinions on this matter and then address other issues such as the fact that universal jurisdiction exists in all countries with respect to violations of customary international law and that, therefore, there is no requirement that there be contacts with the forum. For some of the history in connection with the U.S. ATS or ATCA, see also http://ssrn.com/abstract=1497122
Further, U.S. statutes can have an extraterritorial effect under U.S. domestic rules of construction when there is universal jurisdiction under international law, for various reasons. As our Chief Justice Marshall noted very early in U.S. history, our federal courts are established to decide on human rights.

Just published at Kiobel, Corporate Liability, and the Extraterritorial Reach of the ATS, 53 Virginia Journal of International Law Digest
1-18 (2012), available at http://www.vjil.org/assets/pdfs/vjilonline3/Paust_v6_AMM.pdf
Highlights:
–20 U.S. S.Ct. cases already recognize that corporations and companies can have duties and rights under international law
–ATS expressly incorporates by reference international law as the substantive law
–universal jurisdiction was well-known and pertains with respect to violations of customary international law
–varied principles of statutory construction support extraterritorial reach of the ATS, esp. Charming Betsy
–some early cases were alien vs. alien
–conduct on a foreign flag vessel is on the equivalent of foreign territory
–there were several early types of violations of international law (not merely 2 or 3), and there was C.J. Marshall’s recognition concerning human rights in federal courts
–aiding and abetting liability was addressed in the President’s 1793 Proclamation, which was addressed in Henfield’s Case and in the 1795 Bradford AG Opinion
–Restatement comity-factors cut back in Section 403 expressly inapplicable regarding universal jurisdiction under Section 404 (and courts don’t tend to follow such, nor Congress or the President, when the U.S. has nationality or protective jurisdiction)